Whitley v. Bair

• Decision Date: 06 October 1986
• Docket Number: No. 85-4005,85-4005
• Citation: 802 F.2d 1487
• Parties: Richard L. WHITLEY, Appellant, v. Toni V. BAIR, Warden, Mecklenburg Correctional Center, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1487

802 F.2d 1487

Richard L. WHITLEY, Appellant, v. Toni V. BAIR, Warden, Mecklenburg Correctional Center, Appellee.

No. 85-4005.

United States Court of Appeals Fourth Circuit.

Argued April 8, 1986.

Decided Oct. 6, 1986.

Timothy M. Kaine (Little, Parsley & Cluverius, on brief) and Thomas M. Wolf (Mezzullo, McCandlish & Framme, Richmond, Va., on brief) for appellant.

Richard B. Smith, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen. of Va., Richmond, Va., on brief), for appellee.

Before WINTER, Chief Judge, and WIDENER and SPROUSE, Circuit Judges. ^*

WIDENER, Circuit Judge:

Richard Lee Whitley, under sentence of death for the murder of Phoebe Parsons on July 25, 1980, appeals from the dismissal of his petition for a writ of habeas corpus by the United States District Court for the Eastern District of Virginia. We find no merit in Whitley's contentions, and we affirm.

In its opinion denying Whitley's direct appeal, the Virginia Supreme Court fully summarized the facts, as they were proved at trial, concerning the brutal murder with which Whitley was charged and convicted. See Whitley v. Commonwealth, 223 Va. 66, 70-71, 286 S.E.2d 162, 164-65 (1982). Consequently, we need not recount those facts in great detail here. Suffice it to say that Whitley brutally attacked his neighbor, Phoebe Parsons, age 63, in her home in Fairfax County, Virginia. He first strangled Mrs. Parsons with his hands, and then with a rope; he next cut her throat with his pocket knife; and then, while the victim was near death, or immediately thereafter, Whitley sexually abused her with two umbrellas. The evidence also showed that Whitley on that occasion robbed Mrs. Parsons of various items.

In a bifurcated trial in the Circuit Court of Fairfax County, a jury convicted Whitley of capital murder in the commission of a robbery, while armed with a deadly weapon. See VA.CODE Sec. 18.2-31(d) (1982). The jury fixed Whitley's punishment at death. The Virginia Supreme Court affirmed both the conviction and the sentence in Whitley v. Commonwealth, 223 Va. 66, 286 S.E.2d 162 (1982). ¹ The Supreme Court subsequently denied Whitley's petition for a writ of certiorari. Whitley v. Virginia, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982).

On May 27, 1983, Whitley filed a petition for a writ of habeas corpus in the Circuit Court of Fairfax County. ² The circuit court dismissed the majority of Whitley's claims due to his failure to raise them at trial or on direct appeal. ³ On August 27, 1984, following an evidentiary hearing on certain of the issues, ⁴ the circuit court dismissed in its entirety Whitley's petition for a writ of habeas corpus.

On appeal from this dismissal of his state habeas corpus petition, Whitley raised only two issues in the Virginia Supreme Court; (1) whether the circuit court erred in dismissing Whitley's claim that his trial counsel had failed to conduct adequate voir dire of the jury; and, (2) whether the circuit court erred in finding that Whitley's trial counsel was not ineffective during the sentencing phase of Whitley's trial in failing to investigate and present available evidence in mitigation of the death penalty. ⁵ On April 16, 1985, the Virginia Supreme Court, in a brief opinion, refused Whitley's petition for appeal, finding that the circuit court had committed no reversible error. See Whitley v. Bass, No. 84-1767 (Va. Apr. 16, 1985) (citing Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (U.S. Jan. 21, 1985), and Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066-67, 80 L.Ed. 674 (1984)); see also note 24 infra. The U.S. Supreme Court subsequently denied Whitley's petition for a writ of certiorari on November 12, 1985. Whitley v. Bair, --- U.S. ----, 106 S.Ct. 398, 88 L.Ed.2d 350 (1985).

On November 27, 1985, Whitley filed a petition for a writ of habeas corpus in the U.S. District Court for the Eastern District of Virginia. In this petition, Whitley reraised nineteen of the claims that he had previously raised in his state habeas corpus petition. ⁶ The district court concluded that the majority of Whitley's claims were not cognizable in federal court because Whitley had procedurally defaulted on the claims either at the trial level, on direct appeal, or in his state habeas corpus action. The district court held, therefore, that under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), Whitley's procedural defaults in the state proceedings were a procedural bar to consideration, in the subsequent federal habeas corpus proceeding, of those claims on which he had defaulted. ⁷

The district court considered five of Whitley's claims on the merits, primary among them being Whitley's claim that his court-appointed trial counsel violated Whitley's right to reasonably effective assistance of counsel by failing adequately to investigate, prepare, present, and argue evidence at the sentencing phase of Whitley's trial. ⁸ On this claim, the district court, on the same record as was in the state circuit court and without another evidentiary hearing, did not accept the state court finding and ruled that Whitley's trial attorney's performance during the sentencing phase of Whitley's trial was outside the range of competence required of attorneys in capital cases. Nevertheless, applying the two-part test that the Supreme Court enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the district court held that his attorneys' errors in the case were not sufficiently prejudicial to Whitley's defense to warrant granting him relief on this claim. ⁹ With regard to Whitley's remaining four claims, ¹⁰ the district court rejected each on their merits and dismissed Whitley's habeas corpus petition. Upon dismissing Whitley's habeas corpus petition, the district court denied his application for a stay of execution and refused to grant him a certificate of probable cause to appeal. ¹¹

On December 12, 1985, this court considered Whitley's application for a certificate of probable cause to appeal and for a stay of execution, both of which were granted. ¹²

In his appeal from the district court's dismissal of his habeas corpus petition, Whitley raises two principal issues: whether Whitley's trial counsel failed to provide Whitley with constitutionally effective legal representation at the sentencing phase of Whitley's trial, and whether the district court properly ruled that substantive claims that Whitley had not appealed to the Virginia Supreme Court, either on direct appeal or in his state habeas corpus appeal, were not cognizable in a federal habeas corpus action under the doctrine set forth in Wainwright v. Sykes. ¹³ Initially, we consider Whitley's allegation that his trial counsel ineffectively represented Whitley at the sentencing phase of Whitley's trial.

I.

Whitley's primary contention is that the district court erred when it concluded that Whitley's court-appointed counsel provided Whitley with constitutionally effective representation during the sentencing phase of Whitley's trial. Specifically, Whitley contends that his trial counsel failed adequately to investigate possible mitigating circumstances to present to the jury during the sentencing phase of Whitley's trial. As a result, Whitley contends that he had no defense in this crucial phase of his trial.

During Whitley's state habeas corpus proceeding, the circuit court held an evidentiary hearing on certain issues relating to Whitley's representation during the sentencing phase of his trial. ¹⁴ At that hearing, Whitley presented evidence of mitigating circumstances that he claimed his trial counsel could have discovered and presented during the sentencing phase of Whitley's trial had counsel investigated Whitley's case adequately. This evidence included information that Whitley's trial counsel could have presented to the sentencing jury through the testimony of Whitley's employer, Gary Monahan, as to Whitley's alcohol consumption in the days preceding the murder, the testimony of Patricia Soberg, Whitley's sister, as to the tragic circumstances of Whitley's childhood, and psychiatric and like evidence of Whitley's organic brain dysfunction and his antisocial personality disorder. Because his trial counsel was unaware of this potentially mitigating information, Whitley contends that they were unable to prepare or present an effective defense during the sentencing phase of Whitley's trial. Thus, Whitley concludes, the district court erred in holding that, despite the unreasonability of trial counsel's performance, there was no resulting prejudice to Whitley, and, therefore, that Whitley's representation during sentencing was not constitutionally ineffective.

As noted above, the Supreme Court has established a two-part test for determining whether an attorney's performance during trial was so ineffective as to deprive a criminal defendant of his sixth amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first part of the test requires a defendant to show that his counsel was deficient by identifying the counsel's acts or omissions that the defendant alleges were not the result of reasonable professional judgment. Id. at 690, 104 S.Ct. at 2066. Indulging a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, the district court must then determine whether, in light of all the circumstances, as viewed as of the time of counsel's conduct and not through hindsight, the defendant has carried his burden of showing that his counsel's acts or omissions fell outside the range of reasonably competent assistance. Id.; see also Darden v. Wainwright, --- U.S. ----, ----, 106 S.Ct. 2464, 2473-75, 91 L.Ed.2d 144 (1986).

If counsel's performance was outside the range of competence demanded of attorneys in criminal cases, the defendant must then establish that any...